California Insider

A Weblog by
Sacramento Bee Columnist Daniel Weintraub

June 26, 2003

Shelley slows the recall count

Big news from the Secretary of State’s office on the recall. According to a spokesman, Secretary of State Kevin Shelley has interpreted the law to say that county registrars need only be verifying the signatures they received by June 16. The rest they may set aside until the end of the next reporting period on July 23. Then they will report that number to Shelley and he will give them the go-ahead to verify the second batch. But they won’t be required to report that new number until Aug. 22. If this ruling stands, it will delay considerably the verification process and the date by which the recall qualifies for the ballot. It would almost certainly delay the election until March.

This is looking more like a mirror image of Florida every day. Instead of a Republican Secretary of State fighting to slow a recount and elect a Republican president, we have a Democratic Secretary of State acting to slow a signature count to prevent the recall of a Democratic governor.

And just like in Florida, this one might also wind up in the courts. Except for one problem: if the recall proponents sue, they might find themselves locked in a legal death struggle that could delay rather than quicken the pace of the count. So they may be trapped into accepting Shelley's edict.

My reading of the elections code is that the counties are supposed to be verifying the signatures as they get them. Here’s what it says:

11104. (a) The elections official, 30 days after a recall has been
initiated and every 30 days thereafter, or more frequently at the
discretion of the elections official, shall report to the Secretary
of State all of the following:
(1) The number of signatures submitted on the recall petition
sections for the period ending five days previously, excluding
Saturdays, Sundays, and holidays.
(2) The cumulative total of all signatures received since the time
the recall was initiated and through the period ending five days
previously, excluding Saturdays, Sundays, and holidays.
(3) The number of valid signatures, verified pursuant to
subdivision (b), submitted during the previous reporting period, and
of valid signatures verified during the current reporting period.
(4) The cumulative total of all valid signatures received since
the time the recall was initiated and ending five days previously,
excluding Saturdays, Sundays, and holidays.

Those last five lines seem pretty clear: the registrars are required to notify Shelley on July 23 of the number of valid signatures received during the current reporting period, and the cumulative total. And that would be as of July 16, when the recall organizers say they intend to have submitted all the signatures they will need.

But Shelley’s spokesman says that’s not the case.

“They’re required to provide us the number of verified signatures received through June 16, for the next reporting period (on July 16),” the spokesman said. “If they want to verify signatures received after June 16th, the law does not address that issue. They’re not required to do so.”

The problem is that the statute on signature verification seems to clearly require a continuous verification process, but the detailed rules for the process itself (elections code section 9030) are the same as for a ballot initiative, where the signatures are normally turned in all in one batch. That conflict is what gives Shelley the opening he appears to be exploting to delay the count.

A higher power

Dick Gephardt isn't the only one who thinks the Supreme Court isn't the utlimate authority on constitutional law. If you want to glimpse what the hard core right thinks of the Lawrence v. Texas decision, take a peek here. Warning. It's not for the politically squeamish. Download file

Court to Texas: butt out

The Supreme Court has just overturned the Texas law banning sodomy, and certain folks already are contending that this is somehow an example of legislating from the bench. “Regulating homosexual conduct…is the right of the people, to be exercised through the legislative, rather than the judicial, branches of government,” says Mathew Staver, President and General Counsel of Liberty Counsel. Perhaps this strangely named group needs to look up the definition of liberty. Regulating homosexual conduct is the right of the people, alright, to be exercised by the people in the privacy of their own homes – not by any branch of the government, legislative, judicial or executive. The court here isn’t regulating conduct. It’s preserving the right of free people to act as they please as long as their behavior is consensual and does not harm others. The court is not creating a right to sodomy; it’s denying the right of government to interfere in the private lives of free citizens. Big difference.

The more I see of this decision, the more it becomes apparent that it's a huge victory for liberty and should be celebrated by all opponents of an intrusive government, no matter their beliefs about homosexuality. The point is that three people, making a majority, ought not legislate what two others can do in the privacy of their own home. Would that this doctrine not stop at gay sex but be extended to all human conduct.

Key quote from Kennedy opinion:

"This, as a general rule, should counsel against attempts
by the State, or a court, to define the meaning of the rela-
tionship or to set its boundaries absent injury to a person
or abuse of an institution the law protects. It suffices for
us to acknowledge that adults may choose to enter upon
this relationship in the confines of their homes and their
own private lives and still retain their dignity as free
persons. When sexuality finds overt expression in inti-
mate conduct with another person, the conduct can be but
one element in a personal bond that is more enduring.
The liberty protected by the Constitution allows homosex-
ual persons the right to make this choice."

And Scalia, though dissenting, drives home the point:

"This effectively decrees the end of all morals legislation."

We can only hope that he is correct.

I should add that I am troubled by the court's clumsy explanation of why it was overturning a fairly recent precedent. Dispense with all the mumbo jumbo and just admit it: we screwed up.

Is Shelley the new Katherine Harris?

I see I’m not the only one having a hard time getting straight answers from Secretary of State Kevin Shelley about the recall rules. Roll Call reports that a Shelley spokeswoman says it is “unclear whether a scheduled recall election would proceed if Davis resigns before it takes place.” (Article is for paid subscribers only; I got the quote through Rick Hasen’s Election Law blog.) Shelley’s office has also been painfully slow in answering questions I’ve had about how things will unfold, and up until now I’ve given them the benefit of the doubt, figuring they’re new in the job and a little bit overwhelmed. But the longer this goes on the more I’m inclined to suspect that Shelley wants to keep things vague so he can make it up as he goes along—sort of a Democratic version of the post-election legal interpretations in Florida 2000. I don’t think Davis is going to resign, but shouldn’t Shelley know by now what the law says about the effect of a resignation in the face of a recall? And even if we observers think the law is unclear, shouldn’t Shelley have an opinion, since that’s where the process of sorting it out would begin?

Ward cashes in

My colleague Jim Sanders has an interesting piece on Ward Connerly profiting off his crusade for a color-blind government. At first glance it doesn’t look good – Connerly pulling down 700 grand through two non-profits he runs. But more than $400,000 of that was from speaking engagements and consulting fees. And while Sanders compares Connerly’s salary to the managers of other policy oriented non-profits, the better parallel might be to a political consultant. Connerly is basically a consultant whose client is his own cause. And I’d venture to say that some of the people running ballot initiatives in California as mercenaries are doing just as well. Finally, I have to take issue with a quote in the piece from Assemblyman Fabian Nunez of LA, who is supposed to be one of the rising stars in the Legislature’s Latino caucus. Nunez accused Connerly of creating a “race-baiting” type of atmosphere for financial gain. Again, this is part of the big lie. Connerly has dedicated his life to ending race-baiting and the whole concept of race. It’s his opponents who use race as a political wedge. It will be a shame if Ward’s personal excess on the financial side of his operation in any way keeps the public from seeing that.